Category Archives: cases

Necessity is the mother of intermediaries

Judgment was handed down this morning in Re M (A Child: Intermediaries) [2025] EWCA Civ 440. I had a small non-speaking part (for the FLBA).

The judgment is a delightfully streamlined read and brings some welcome clarity to the approach on the appointment of intermediaries.

As my – frankly fabulous – post title suggests, necessity is the test, baby. Nothing else will do: Not compelling. Not rare. Not exceptional. Just plain old necessary.

Lord Justice Peter Jackson had this to say about the various high court authorities from which these high bar tests have emerged (before going on to politely demolish them):

In the three appeals about intermediaries that it has heard since Part 3A came into effect, this court has taken its provisions at face value.  Considering that the regulatory framework is recent, it is unpromising ground for a wider exercise in judicial interpretation.

So, the various High Court authorities suggesting necessity plus in various flavours can be put to one side, and the President’s very recent guidance must also bow to this binding appellate authority (but only the few paragraphs which run contrary to the judgment).

There is in any event no warrant for overlaying the test of necessity with concepts of rarity or exceptionality.  Frequency is not a test, and nor is exceptionality.  Similarly, the introduction of tests of “compelling reasons”, or of adjournments for lack of an intermediary being “unusual” or “very unusual”, beckon the court to short-circuit its consideration of the evidence in the individual case.  … These projections, including references to “very rare” or “rare” cases, are not a substitute for a straightforward application of the rules.

Be warned though, the CoA did say that the impression apparently held by senior judges that intermediaries were being sought too often is not something to be scoffed away, and should be treated with respect. So whilst necessary doesn’t mean exceptional it also doesn’t mean helpful.

Any perception on the part of the senior family judges that intermediaries are being appointed too freely must be treated seriously.  But as a matter of law the solution lies in the effective application of the necessity test found in the FPR, a test that the court has routinely applied to the appointment of experts in family proceedings since 2014.

We should follow the FPR. Who’d-a-thunk it?

Advocates are expected to have sufficient skill to differentiate their questioning style and client care, but there is a limit – the judgment acknowledges that we only have one pair of eyes, and one pair of hands, have quite a lot else on our plate and are NOT intermediaries:

The court is entitled to expect specialist family lawyers to have a good level of understanding of the needs of vulnerable individuals in proceedings and an ability to adapt their communication style.  It will consider what can reasonably be expected of the advocates, and in particular of the vulnerable party’s advocate in the individual case, bearing in mind that professional continuity may not be guaranteed.  Intermediaries should clearly not be appointed on a ‘just in case’ basis, or because it might make life easier for the court, but equally advocates should not be required to stray beyond their reasonable professional competence to make up for the absence of an intermediary where one is necessary.

The judgment confirms that intermediaries may be appointed to assist in conferences away from court, for instance to prepare a witness statement – but just because a party needs an intermediary in the pressured environment of court does not necessarily mean they will need an intermediary at conferences elsewhere. The two should be considered separately.

The judgment also confirms that the contributions of the parties’ legal representatives on their vulnerable person’s needs are a legitimate part of the mix:

The court is also entitled to take account of the parties’ submissions, to whatever extent it considers appropriate.  Advocates are expected to have the skill to identify and adapt to vulnerability, and their submissions on the measures needed to ensure a fair trial form part of the information on which the court can act.  The advocate representing a vulnerable person or seeking to call them as a witness may be well placed to assist the court from their own interactions with the vulnerable person, but it would be inappropriate to require evidence from them in the form of a witness statement.  As the process is a collaborative one – PD3AA paragraphs 1.4 and 3.1– the court may also benefit from submissions made by other parties, who may also have their own interest in the decision.  The local authority and Children’s Guardian will wish to ensure that the proceedings rest on firm foundations and, depending on the case, individual parties may have their own perspectives.

Two further points:

  • The intermediary conducting the assessment should be sent any cognitive assessment. This doesn’t seem to happen routinely but the Court of Appeal have said that the intermediary should have that information (for obvious reasons).
  • One of the errors made by the judge in the case appealed was that he did not properly consider what alternatives could and would be put in place to obviate the need for an intermediary. Had he done so the necessity for an intermediary would have been apparent (hello, Holistic evaluation has entered the chat). The checklist of factors in r3A.7 are an invaluable aide to a sound decision.

 

I may have been gone some time…

Posts are getting ever more infrequent around here. Doubtless in part because of my continuing inability to say ‘no’.

Having been on the verge of being virtually committee-less at the end of last year, I now find myself back on two committees (FLBA, Bar Council). The Transparency Project work continues, and I seem to be forever scrambling to keep on top of that. I am desperate to find some time to do more legal blogging (my last outing in October has been stuck in the mud for reasons I can’t tell you about at the moment, so I’ve nothing to show for my endeavours on that front), and I’ve been flat out with work since December. On top of all that there has been lots happening at home so there is much to juggle.

All excuses of course. I used to manage multiple posts a week whilst wrangling two toddlers and writing a book. I smile weakly whenever someone says to me ‘Oh, I don’t know how you manage it all’, knowing of course that approximately once a week a plate goes careering off its stick and spins into a wall, whilst the rest are circling slowly and about to drop.

Anyway, I’m between trials at the moment so have had a little time to regroup, catch up on sleep and rebalance slightly. I’ve spent most of half term with the kids, and yesterday was gloriously sunny and mild. The prom was heaving with dogs and humans, seagulls and discarded chip boxes. My prediction that, since it was still February, this was an obvious false spring, was spot on. But it was a welcome dose of vitamin D all the same and cheered me up no end. Today I am very much enjoying a Sunday in pyjamas and thick cosy socks, as the rain lashes on the windows.

So, what’s new in the world of family law?

Well. Intermediaries are out and the mainstreaming of neurodiversity is in. See guidance on neurodiversity here and intermediaries here, the latter of which effectively encapsulates the guidance in judgments of Lieven J and Williams J here and here and here. In my own recent experience are a number of trials involving lay advocates and intermediaries, and one trial in particular in which the intermediary report was perhaps less clear in its recommendations than the cases and guidance suggest is to be expected, but where in fact the intermediary turned out to be absolutely critical to our trial being fair and effective. Whilst recognising the need to keep the appointment of intermediaries and associated cost under a close eye, I do hope the pendulum will not swing too far on this front.

Anonymity remains a hot topic – when is it justified and when is it not?

Anonymity for judges is definitely out (but better security for them is definitely in).

Anonymity for dangerous men who pose a wider risk to the public seems to be out – for instance following on from the ‘Fragile X’ case, and the Kristoffer White case, the naming of another sperm donor who said he had fathered 180 children was reported recently too.

Anonymity for unregulated professionals (maternity nurses) who injure babies in their care – is out – at least in the quite fact specific decision of HHJ Rowe in this case about twins found to have been injured whilst in the care of their maternity nurse. Oddly though, the judge in the twins case refers to the President’s first instance decision in Abbasi / Haastrup, which was overturned on appeal to the Court of Appeal. She should have been referred to the appellate decision, which takes a very different view – and to the fact that the case is still pending in the Supreme court, meaning that anonymity for treating medics is still a bit up in the air. It’s been almost a year since the hearing of that case. Fortunately it doesn’t seem to have materially affected the outcome in the case of the twins as the judge decided to name the professional anyway, again in part because she was unregulated and therefore there was no obvious regulatory mechanism through which to ensure she was prevented from continuing to advertise herself as a maternity nurse or from providing care for children and that other families were protected. Read about this case here (links to both judgments).

The theme here is the broader risk to the public.

Sliding over from the unregulated maternity nurse to the vexed topic of unregulated experts – a smidgen of an update is now available from the most recent minutes of the Rule Committee:

…a meeting with the Domestic Abuse Working Group took place on 10 December 2024 to review draft amendments and the consultation paper. Feedback from the Working Group is being incorporated to finalise the rule in a way that ensures consensus. Once finalised, updates will be presented to the Committee. The outcome of the meeting is guiding the next steps, with a substantive update and a request for approval to launch the consultation planned for the Committee’s February 2025 meeting.

That February meeting will now taken place, but we won’t expect to see the minutes of that meeting for a little while. So far, no sign of any consultation. I dare say that some will be unhappy at the need for a consultation before implementation.

Meanwhile, a podcast based on undercover reporting recently exposed two experts instructed in the Family Court as …how best to summarise? …less independent and unbiased than the rules require and the court expects. Other descriptions are available, but I suggest you read / listen and form your own view. One was a regulated professional, the other was the same unregulated professional in Re C.

And – of course – we are still waiting for the covert recording guidance from the FJC. It has been almost a decade since it was first mooted, so if it arrives before I retire I will be surprised.

There is of course a whole lot more going on in family law than this smattering of information, and these are simply an assortment of shiny things that caught my eye.

That’s it from me this gloomy Sunday. I’m off to raid the fridge for Sunday snacks.

Roll on springtime…

‘What went wrong’ – are we asking ourselves the right questions?

Some commentary I’ve heard and read in the wake of the murder of Sara Sharif features the familiar questions that have been asked after so many other child deaths – ‘What went wrong? And ‘Why does this keep happening?’

This post is only concerned with the role of the Family Court. It doesn’t consider what happened after the Family Court was last involved in 2019, and the role of other agencies such as the school and social services – there are lots of good questions about that, but those are for another day and another blog post.

So what about †he Family Court? Some people clearly think its self evident from the basic facts that something went wrong: the Family Court knew there were allegations against him, approved her placement with him and now she’s dead. Ergo, something went wrong. Of course, it isn’t actually that simple.

In his ‘anonymous judge’ judgment arising from the media’s application to access documents from the Family Court relating to decisions made about Sara and her siblings (which is due to be dealt with on appeal next week) Williams J appears to suggest that perhaps nothing ‘went wrong’ and the system was working as it always does and that the decisions made by Sara’s judge(s) were typical and likely to have been made regardless or which individual judge had the case in their list on the day. It probably isn’t that simple either.

I’ve read both Williams J’s comments (which are better informed than mine as he has seen the documents) and this account in the Guardian, from journalists who had also seen at least some of the same documents (I’ve also read various other accounts in the media but this one is pretty much as detailed as it gets). It’s difficult to know what to make of these two very different perspectives without sight of the documents themselves, but I have questions that are not answered either by the journalists summaries of what they have read or by Williams J’s assurances that it’s all pretty normal fare (my summary). For me, this case, and others like it, raises a heap of complicated questions that don’t all pull in the same direction. I don’t know whether any individual or ‘the system’ did anything out of keeping with accepted good practice. Perhaps. Perhaps not.

But, leaving aside for one moment what the ‘typical hypothetical judge’ might have done in those earlier care proceedings, or, if confronted with the decision about her residence in 2019 – I am readily prepared to accept that accepted good practice, or established real life practice (perhaps not the same because resource limitations in every system force a gap between the ideal and the real) could be improved.

Even if Williams J is right that there is nothing surprising in the way the Family Court responded to the evidence before it in this case, bearing in mind the legal framework (and resource backdrop) – a powerful retort to that might be this: if this is what the system considers ‘good enough’ then it needs an overhaul, because with proper resource and attention the risks ought to have been obvious and a different decision might have been made. And in a way, the Williams judgment seems to sort of hint at that by referring to resources. ‘If you want us to do things differently or better, fund us properly’ it appears to say. The family justice system is, like many other of our systems and institutions, suffering badly from underfunding and you would be hard pressed to say that isn’t so.

It will likely be said during the appeal next week that a lot of what is in Williams J’s judgment, including his review of his predecessors handling of the cases involving Sara, is irrelevant to the question of the identification of the judge. There is authority to support that being so. But, regardless of whether they were a necessary and proper commentary to include in a judgment, some of the comments on the system are illuminating (whether one agrees with them or not). I suspect that they will resonate with many family lawyers and judges – the sense that judges (just like others in the family justice system) are acting in good faith and doing their level best with inadequate resources and time, is strongly felt. If we are honest with ourselves, we all know that the perfect makes way for the adequate in the Family Court just as it does in any institution – and sometimes it makes way for the inadequate, as judgments arising from successful appeals tell us. We are not working in a perfect system and of course individual judges are not personally responsible for the resource environment in which they must operate. The fear underlying the remarks of Williams J is that the naming of the judge will result a witch hunt which attempts to make an individual responsible for systemic issues. I don’t think he is alone in that anxiety and I understand it. The new Chair of the Bar made a similar point in her powerful inaugural address this week – that the family justice system is important, and can play a crucial part in reducing violence against women and girls – but only if it is properly resourced.

Whenever I am thinking about the role of the judge and how they are (mis)understood in the world at large – and what we should and should not expect from them – I remind myself of the wisdom and humility of former High Court Judge Sir Mark Hedley. Today I pulled down my copy of ‘The Modern Judge – Power, Responsibility and Society’s Expectations’ again to locate these words:

Judges are, however, united in one view: their own fallibility. None of us is right all the time; no human being ever is. You cannot do the job I did for very long without that becoming very apparent. Humility is an essential quality of the good judge, not always easy

Later, in a chapter which considers the relationship between truth, proof and justice (and our fact finding process) Sir Mark says this:

Could all this be done better? Of course the answer must be ‘yes’, and we need to ensure that proof and truth more exactly coincide. However, the inherent contradictions and fallibilities of our own judicial system, not to mention the activities of those who for their own reasons are anxious to evade the truth, probably mean that things cannot be done radically differently. Society commits to judges both great power and great responsibility in the individual case, and does so in what should be the full knowledge of the inherent fallibility of any human system of justice. Thus, if as a society we are to have a politically and morally acceptable system, we must have an uncorrupted, well trained, and independent judiciary who enjoy the trust of that society.

And so we come back full circle to the need to ensure public trust in the judges in whom we vest so much power. Which of course is why the ‘anonymous judge issue’ matters. To command respect and maintain trust you have to understand power and be ready to be accountable. But the anonymity point is a matter the Court of Appeal will look at next week and not the subject of this post.

In any event, it isn’t just about names. Trust is also build by being willing to permit, to take part in a more sophisticated public discussion, that focuses on lessons, on learning and on change rather than personal blame – and it is also built by individuals within the system being willing and able to listen and hear uncomfortable perspectives. That is as important as the identity of the judge.

So, the real topic of this post is to prompt some thought about what we as a society are asking or expecting Family Courts to do on our behalf? It is easy when a child is murdered to fall into the trap of demanding, expecting the powers that be – whether that is the state or government generically, or specifically social services or the Family Court – to prevent all child abuse and murder. A great ideal but it takes only a moment’s thought to know this is unattainable. That doesn’t mean of course that we shouldn’t strive to reduce, as far as possible, the numbers of such terrible events. We should absolutely strive to do so, and scrutiny of what we did last time around – and why – and whether we might be able to change and improve our responses next time – is an essential part of that task.

But what I think gets lost in these ‘well obviously something went wrong in the Family Court’ comments – is that the Family Court is not actually tasked with removing all risk. That just isn’t the job of the judge and if we think it is we are starting from the wrong place. The Family Court judge is tasked with identifying, evaluating and managing risk and trying somehow to predict the risks, to weigh up the options and to find best outcome. Its job is to do so based upon the evidence it has available. There is no crystal ball. Inevitably that evaluation, made by humans and based on the evidence produced by humans, will sometimes turn out to be ‘wrong’ in the sense that something awful still happens. Something that was a known risk, serious but unlikely ever to actually happen, will in fact happen in a low proportion of cases. That is part and parcel of how risk management works. One of the continuing failures of the family justice system is the near absolute failure to track long term outcomes for the children judges make long term decisions for. Bar in cases of child death most judges never know if their decision turned out well for the child or not. Which makes it pretty hard for individual judges or the system to learn from its mistakes.

Back to the role of the individual judge, though. To put it another way – we would not want judges to only make decisions that produced a ‘no risk’ outcome. If they did then vast numbers of children would be removed from slightly flaky but loving parents, and would suffer all the inevitable harm that such separation entails, all to avoid a small chance that their mum’s or their dad’s flakiness might one day result in significant harm. Not only would we not want this outcome as a society, it isn’t what the law provides for anyway. Written into our domestic law and the European Convention on Human Rights are the core requirements of necessity and proportionality. The Children Act 1989, which is the backbone of decisions made by judges on these difficult topics, includes (of course) harm suffered and risk of harm, parenting capacity etc – but these are not the only issues to consider and evaluate and nor should they be. It was precisely to ensure that sledgehammers were not used to crack nuts that Parliament took care to restrict the ability of the state to swoop in and remove children from their family altogether by s31 of the Children Act, which introduces a threshold or gateway minimum level of risk that has to be crossed before such action is permitted – and all of that prior to an up to date evaluation of risk to allow for parental change and a balancing of pros and cons. (With regard to Sara’s case and how this applied and was all carried out, I don’t think there is yet enough information in the public domain to comment meaningfully, though there are some obvious questions in my mind, and so I am talking in quite a general sense here.)

Again, Sir Mark Hedley has some insight to offer. Firstly, in the familiar words of Re L from his judgment 2006:

Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done. … It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life.

And more recently, Sir Mark was interviewed on Radio 4 shortly after the verdicts and before there had been time for much news coverage of the Family Court’s role, and he explained to listeners that family judges don’t have some roving power to do whatever they like, such as removing children whenever they want – they have to work within the framework that Parliament has given them. He was talking about the fact that it is social services who have the primary role to intervene by applying to the court if they thing there is a risk of significant harm (care proceedings), and that the most a court can do in a case brought between parents (private law proceedings) where the judge is worried about the risk of significant harm is to order a specific type of report asking social services for their view on whether there is such a risk (s37 Children Act 1989).

Most cases before the Family Court involve some level of risk: Domestic abuse. Emotional harm. Adult conflict. Poverty. Mental health difficulties. Substance abuse. Criminality. One or more of those will feature to a greater or lesser degree in almost every single one of the tens of thousands of cases before the court each year, and with each comes risk of harm (some serious, some trivial, some very likely, some remotely likely). Where the local authority think the risk is likely to be significant they should bring care proceedings, which the judge will then deal with. The job of deciding how much risk is too much risk is not a science and in many cases there is not an obvious ‘right’ answer, but this is nonetheless what judges (and social workers) have to do every day. And it’s really tough. Every judge knows what Hedley articulated so clearly – it is impossible to get it right every time. And that in trying to protect you can end up causing more harm than good.

I sometimes hear social workers talk about ‘holding risk’, although these days they more often seem to operate from a defensive position, trying desperately to eradicate all risk. Last week I saw a comment on LinkedIn from a social worker articulating why this is problematic. Here is an extract from Richard Devine’s post entitled ‘Why It Isn’t My Job to Keep Children Safe’ (with kind permission):

At first glance, keeping children safe seems like an obvious description of our job. It’s even in the job title—child protection. We protect children from harm, and intuitively, the inverse of protecting children from harm is to keep them safe.

But I’ve come to realise that this framing is flawed. Keeping children safe is not our job.

This isn’t to say that safety isn’t important—it absolutely is. However, the idea that it’s solely our responsibility is an unattainable ideal. If we measure our success by whether a child is entirely safe, we set ourselves up for futility and burnout, because no matter how hard we work, we will almost certainly fall short.

Our job is not to guarantee a child’s safety but to help parents ensure their children do not experience significant harm.

This shift in perspective is profound. It acknowledges that some level of risk and harm is inevitable, even in the lives of children we work with. Our interventions aim to reduce significant harm, not to eliminate all forms of risk—a distinction that is critical yet often overlooked.

I’ve quoted Richard because this applies as much to judges as it does to social workers. And when we ask questions about what happened in Sara’s case, and in the many others like it, we do need I think to hold in mind that the job of the judge is NOT to keep every child safe all the time. It is to promote their overall welfare, keeping safety and risk in mind as important but not the only factors. It is to choose the best of a range of options – sometimes each one of them involving a degree of imperfection and risk. If we wanted to keep every child safe all the time we would both need to change the law and to resource the system in an entirely different way. And I’m not sure we would much like the results if we did.

There is always scope for improvement by the Family Court in how it gathers information in individual cases and in how it identifies, manages and evaluates risk in those cases. It is absolutely legitimate and necessary to be asking probing questions. And the court should welcome those questions, because they will help us all to do better, and to be the best we can be. But we should never forget the inevitable limitations of a system run by imperfect humans for other imperfect humans, and that any such system is only as good as the tools and the rules it operates with and within.

One further thinking point from me – in 2017 the then President Sir James Munby, following a child death where the Family Court had been involved (I think that of Ellie Butler) issued Guidance around ‘Judicial Cooperation with Serious Case Reviews’. Although Serious Case Reviews have now been replaced with Child Safeguarding Practice Reviews, the core point remains good: for sound constitutional reasons judges cannot actively participate in such reviews by interview or comment or explanation. They can and should provide all relevant material to assist the review, and when any review report identifies learning points for the Family Court, the President will issue Practice Guidance to effect the necessary change in practice.

Paragraph 10 is very direct:

The judiciary is not an agency in the same way that local authorities or the police are agencies. Nor is an individual judge. Judges have a distinct constitutional role and function. It is a fundamental principle that judges do not comment on the decisions of other judges outside the appellate process. This is why it would be inappropriate for an IMR of a judicial decision to be conducted; it would, effectively, be one judge (or group of judges) commenting upon the decisions of another judge outside the proper appellate process. It would be even less appropriate for an of?cial (including for this purpose an of?cial in the Judicial Of?ce or in the Judicial Press Of?ce) to seek to comment on a judicial decision. This principle evolved in order to protect the rule of law – it reinforces the idea that the only way to challenge a judicial decision is to do so in court, not to seek to undermine it outside the court process.

Even if Sara’s Judge(s) is/are named they won’t be able to tell us any more than is available through scrutiny of the materials before them and their judgments tell us. Since judges cannot be permitted to explain or comment upon their decision (other than through the reasons given in their judgment) it is all the more important that documents should be made available in order to inform understanding of what happened, why and whether any learning points arise. The media have been provided with a raft of documents, but at the moment the reporting I’ve seen derived from those documents probably only scratches the surface of what we might need to know before drawing meaningful conclusions.